R v Paul Charles Rudling No. DCCRM-96-1236 Judgment No. D3645

[1997] SADC 3645

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons of His Honour Judge Lunn

Hearing

17/07/97.

Catchwords

CRIMINAL LAW Sentencing - disputed facts hearing - held matter of aggravation in Victim Impact Statement that defendant knew at time of offence of gross indecency that a sister of the victim had been murdered after a sexual assault was not proved beyond reasonable doubt and thus was not to be acted upon - effect of failure of prosecution to call a witness to the disputed conversations.

Representation

R:
Counsel: MS P KELLY - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Accused PAUL CHARLES RUDLING:
Counsel: MR G ALGIE - Solicitors: R M CADD &; ASSOCIATES

DCCRM-96-1236

Judgment No. D3645

30 July 1997

(Criminal)

R v PAUL CHARLES RUDLING

Criminal

Judge Lunn

REASONS ON DISPUTED FACTS HEARING

The defendant has pleaded guilty to one count of gross indecency. The victim was a child aged nine years. The defendant was a friend of the family and had visited the home on a number of previous occasions. The victim impact statement alleged that the victim and her family had been particularly traumatised by the offence because some years earlier an older sister of the victim had been abducted, raped and murdered. It was alleged that the defendant knew of this before this offence, but he denied any such knowledge. As he denied such knowledge the onus was on the prosecution to prove it: R v Byrnes and Hopwood, CCA 11/12/96, Jud No S5927, unreported. As the defendant's prior knowledge of the matter would be a matter of aggravation in sentencing the onus was on the prosecution to prove his knowledge of it beyond reasonable doubt: Anderson v R
(1993) 117 ALR 1. Accordingly, a disputed facts hearing was held on the topic.

At the disputed facts hearing the prosecution called only the victim's mother who said that on a number of occasions in her presence prior to this offence the victim's father had mentioned to the defendant the death of their eldest daughter and its surrounding circumstances. The prosecutor indicated that she was not calling the victim's father as he now lived in Melbourne and a decision had been made not to incur the expense of bringing him to Adelaide for the hearing. The defendant gave evidence that he had no knowledge prior to the offence of the death of the eldest daughter of the family.

On the authorities a failure by the prosecution to call a witness who was fairly available to it can lead to an inference that the uncalled evidence would not have assisted the prosecution case: Jones v Dunkel (1959) 101 CLR
298; Spence v Dimasi (1988) 48 SASR 536 at 547-8. Here the victim's father could have given important direct evidence of the crucial conversations. However, no inference is to be drawn from his absence if there is a satisfactory explanation for the failure to call him. In Packer v Cameron
(1989) 54 SASR 246 at 254 the Full Court held that there was such a satisfactory explanation where the potential witness was overseas in Singapore, but the rationale for that decision was that the witness could not be compelled to attend from there and his evidence could only have been obtained on commission. I can find no authority to the effect that merely because a person is interstate is a satisfactory explanation for the failure to call him. The provisions of the Commonwealth Service and Execution of Process Act 1992 enable the attendance of such a person to be compelled under subpoena. I infer from the prosecutor's comments that the reason why the victim's father was not called was an economic one in that it was not thought an appropriate use of the prosecution's financial resources to spend that amount of money on this issue. That is a decision which the DPP is entitled to make, but it is not to be to the prejudice of the defendant. I was not so convinced by the evidence of the victim's mother about the point in issue that I am prepared to find it proved beyond reasonable doubt where a person who could have corroborated her evidence about it could have been called by the prosecution but was not. Accordingly, I do not find it proved beyond reasonable doubt that the defendant knew prior to the offence of the death of the eldest daughter of the family and I discard that allegation in my sentencing of him.